6.  The applicant was born in 1956 and lives in Celje. She is an advocate practising in Celje.
7.  In 2001, the applicant was representing M.Š. in civil proceedings for compensation for injuries which M.Š. had allegedly sustained in a physical attack by the defendant. The proceedings were conducted before the Domžale Local Court sitting in a formation of a single judge. The judge in the case was Judge M., a Ljubljana Higher Court judge who had been temporarily appointed to the local court.
8.  It appears from the transcript of the hearing of 28 November 2001 that the applicant was not permitted to ask the defendant certain questions as they were considered suggestive by Judge M. Her proposal that a witness be heard was also rejected, as this evidence was not considered necessary by the judge.
9.  On 28 November 2001 the Domžale Local Court delivered a judgment rejecting M.Š.’s claim for compensation.
10.  On 27 December 2001 the applicant’s client appealed. In the appeal statement drafted by the applicant, Judge M. was criticised for not putting on record some of his procedural decisions and for not including the applicant’s client’s statements in full. It stated, inter alia:
“It would be reasonable to expect that the judge of a higher court would explain before the trial hearing why it is he who is presiding over this case which ... is being considered at first instance; this is what the judicial code of behaviour would expect him to do. However, the judge was trampling on that code of behaviour by behaving arrogantly and chewing gum during the hearing, and by covering his mouth while talking.
On 28 November 2001 proceedings were held before the Domžale Local Court following the principle of the inquisitorial system. The transcript of the hearing shows that [the proceedings] were not carried out in accordance with the Civil Procedure Act.... The judge, despite requests, did not include in the transcript the statements and messages which were given by the plaintiff or her representative...
The judge asked the plaintiff whether she understood the Slovenian language, and she confirmed that she did. However, he then chewed gum during the interview, so that the plaintiff could not understand him.
Following this superficial evidence-taking, the judge, without deciding on the other requests for evidence, concluded the hearing. For that reason, the facts of the case were wrongly and insufficiently established...”
11.  On 26 May 2004 the Ljubljana Higher Court upheld the appeal in the part concerning compensation for bodily injuries. However, it rejected the complaints concerning the alleged procedural defects and inaccuracy of the transcript of the hearing. In particular, the court found that the transcript had been signed by the parties without objection and that none of the parties had challenged the impartiality of the judge by instituting proceedings to that effect.
12.  On 8 January 2002 Judge M., having received the appeal against his judgment of 28 November 2001, issued a decision fining the applicant 150,000 Slovenian tolars (SIT) for contempt of court for her statements in the appeal. It stated that the fine should be paid within fifteen days. The decision reads as follows:
“In the above civil case, the plaintiff’s representative Alenka Pečnik, attorney, lodged an appeal against judgment no. P 107/97 of this court. In the appeal she gravely insults the presiding judge by stating that he was trampling on the judicial code of behaviour by behaving arrogantly, chewing gum and covering his mouth while communicating with those present at the hearing, and that the proceedings were conducted on an inquisitorial basis. These are insulting and invented allegations and for that reason a monetary fine has been imposed on the plaintiff’s representative on the basis of section 109 read together with section 11, paragraphs 3 to 7, of the Civil Procedure Act. The monetary fine for the attorney can be set up to SIT 1,000,000. Since the present case involves a grave insult, the court considers that the appropriate penalty should be SIT 150,000.”
13.  On 29 January 2002 the applicant lodged an appeal, alleging an incorrect application of the Code of Civil Procedure (hereinafter referred to as “the CPC”) and an incorrect assessment of the facts. In particular, she stated that her statements were true and were not intended to insult the judge but to describe the atmosphere during the hearing, where the judge had repeatedly raised his voice. She also stated that her client was not a native speaker of Slovenian and had been unable to understand the judge because of his behaviour. She claimed that her remarks had been taken out of context, and submitted statements by her client and a witness in support of her allegations.
14.  In her appeal the applicant also requested that the venue of the proceedings be changed, as Judge M. was a judge of the Ljubljana Higher Court, which would normally have had jurisdiction to decide the appeal. Her request was upheld and the case was transferred to the Koper Higher Court.
15.  On 8 April 2003 the Koper Higher Court rejected the applicant’s appeal. If found that although the impugned decision relied on statements which had been taken out of context, these statements were indeed insulting and the tone of the appeal in question was in any event inappropriate. The fact that the applicant tried to tone down the impugned allegations in her appeal undermined her credibility and supported the first-instance court’s conclusion that the allegations were invented. Finally, the Koper Higher Court found that the applicant could have defended her client’s interest by using proper language, without insults.
16.  On 12 May 2003 the applicant lodged a constitutional appeal. Citing Articles 14, 21, 22 and 23 of the Constitution, the applicant complained that she had been convicted of contempt of court in proceedings which had been unfair and biased. In her submission, it was unacceptable that a judge who felt personally affected by the impugned statements could convict her and impose a penalty, which could be converted to imprisonment. Furthermore, no evidence apart from that provided by the judge himself was examined in the proceedings, and the Higher Court rejected the appeal by relying merely on the statements of the judge. The applicant alleged that the purpose of the statements she had made in the appeal at issue was to draw attention to the inappropriate behaviour of the presiding judge. These were statements of fact, and were supported by the transcript of the hearing and witness statements. They were not made with the intention of humiliating the presiding judge but in defence of her client’s interests.
17.  On 27 May 2003 the applicant paid the fine.
18.  Declaring the appeal admissible on 26 October 2004, the Constitutional Court delivered its decision on the merits on 27 October 2005. Referring to its conclusion concerning judicial impartiality in the decision of 23 June 2005 (see paragraph 21 below), the Constitutional Court found (by five votes to four) that the applicant’s right to an impartial tribunal had not been violated. The Constitutional Court then reviewed the reasons for sentencing the applicant given by the lower courts. It agreed with the lower courts that the applicant’s statements did not represent a legitimate exercise of a lawyer’s duty to defend her client’s interest. It noted that a judicial decision could always be criticised in a way that did not involve an attack on the reputation of the judiciary or a personal attack on a particular judge.